Unprecedented sanction: Bercy orders the dereferencing of the digital platform Wish

08/12/2021

On 24 November 2021, Bercy announced that it has ordered the major mobile application shop and search engine operators to discontinue the Wish e-commerce site and its mobile application [1]. Customers will now only be able to access the online sales platform by directly entering the Wish web address and not by searching through search engines such as Google.

According to the General Directorate for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF), tests carried out on 140 products showed that they did not comply with safety requirements and were particularly dangerous (for example, 90% of the electrical appliances analysed were considered dangerous). Moreover, the platform did not carry out the procedures for withdrawing and recalling products that it is required to do as a distributor. In July 2021, the DGCCRF ordered Wish to comply with its obligations, an injunction that has remained unanswered and has led to the present sanction. This decision may not be the only one, as the DGCCRF also targeted other online platforms such as Aliexpress or Amazon in a press statement published a month earlier [2].

These are unprecedented measures taken in application of the new Article L. 521-3-1 of the Consumer Code [3], granting new powers to the DGCCRF – which until then had only the power to refer cases to the courts – when agents observe an infringement or failure to comply with the rules relating to the conformity and safety of products from an online interface, the author of which cannot be identified or has not complied with the injunctions imposed on him. In this case, the DGCCRF may now notify online platform operators of the e-mail addresses of online interfaces whose content is clearly illegal so that they can take all necessary measures to stop their referencing, as is currently the case with Wish. However, the infringement must be (i) punishable by at least two years’ imprisonment and (ii) of such a nature as to seriously undermine fair trading or the interests of consumers.

In that respect, Bruno Le Maire reaffirmed the authorities’ determination to fight against the abuses of digital giants, stating that “digital technology is not above the law”[4] and that the government intends to “fight effectively against unfair competition from economic operators“.

Wish intends to appeal against the DGCCRF’s decision, while Bruno Le Maire said that this measure could precede a ban on the site on French territory if the company fails to take action. Article L. 521-3-1 of the aforementioned code grants the DGCCRF the power to order registry operators or domain registrars to block a domain name, or even to delete it in the event of persistent infringement. Direct access via the web address would therefore be impossible. The prospects for litigation are therefore far from over.

By Malka Marcinkowski and Arthur El Aoufir for the Competition Department.

[1]  DGCCRF, press release of 24 November 2021, “Bruno Le Maire, Alain Griset and Cédric O announce exceptional measures against the Wish marketplace to raise awareness and better protect consumers”.

[2] DGCCRF, press release of 15 October 2021 “Online marketplaces: too many dangerous products according to the DGCCRF”.

[3] Introduced by Act No. 2020-1508 of 3 December 2020 containing various provisions for adapting to European Union law in economic and financial matters (DADDUE Act).

[4]   Francetvinfo.fr: “Dereferencing of Wish: Bruno Le Maire ready to ban the site on French territory if it does not provide more protection for consumers”.

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